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NOTES. 351 

State decline to interfere by injunction to restrain its citizens from 
proceeding in an action which has been commenced in the courts of 
a sister State, yet there are exceptions to this rule, and when a case 
is presented, fairly constituting such exception, extreme delicacy 
should not deter the court from controlling the conduct of a parly 
within its jurisdiction to prevent oppression or fraud." This is a fair 
expression of the present policy of the courts of this country as well as 
of England. 2 Story Eq. Jr. §§ 899, 900; Dehon v. Foster (1862) 4 
Allen 545; Engel v. Scheuerman (1869) 40 Ga. 2c6; Snook v. Snetzer 
{1874) 25 Ohio St. 516; Keyser v. Rice (1877) 47 Md. 203; Allen v. 
Buchanan (1892) 97 Ala. 399. 

The constitutionality of such proceedings has been doubted, but 
that phase of the question was settled by Cole v. Cunningham (1889) 
133 U. S. 107, in which the Supreme Court upheld the injunction, 
recognizing the essential distinction between a court's refusing to give 
credit to the decrees of another court, and a court's exercising its 
power to restrain an individual. 

On principle the same conclusions should be reached in conflicts 
between State and Federal courts. Such has not been the case. 
Judiciary Act 1793 (incorporated in Revised Statutes U. S. §720) 
prohibited Federal courts from granting injunctions to stay proceed- 
ings in State courts, except where authorized by bankrupt laws. This, 
however, has been construed to apply only to cases in which the State 
court had first obtained jurisdiction. Fisk v. Union Pacific Ry. Co. 
(1873) 10 Blatchf. 518; French v. Hay (1874) 22 Wall. 250. Thus 
far the only inconsistency in the results has been created by statute. 
The real inconsistency is met with when we consider the reverse of the 
proposition, viz.: the right of a State court to interfere in Federal pro- 
ceedings. It has been broadly stated that the State court has no such 
right. Riggs v. Johnson Co. (1867) 6 Wall. 1 66. This can only be 
supported on the ground of public policy, which recognizes the 
danger of conflict between State and Federal courts, growing out of that 
peculiar concurrent jurisdiction. Even granting that possibility, the 
better reasoning would seem to allow the injunction against a litigant 
in a Federal court as well as in a sister State court. Ackerly v, Vilas 
(1862) 15 Wis. 440; Home Insurance Co. v. Howell (1873) 24 N. J. 
Eq. 238. 

Declarations as Part of the Res Gfsta. — The looseness of 
modern decisions in the interpretation of the so-called res gesta rule 
was well illustrated by the recent case of Rogers v. Manhattan Ins. Co. 
(Cal. 1903) 71 Pac. 348, which held, in a suit in which the death of 
an insured person was the issue, that a letter written by him imme- 
diately prior to his disappearance, announcing his intention to com- 
mit suicide, was admissible as part of the res gesta. 

The Latin phrase res gesta is generally supposed to have occurred 
first in Tooke's Case (1794) 25 Howell's State Trials 440, and to 
have taken the place of the English word " transaction " which was 
used in Rex v. Hardy (1794) 24 Howell's State Trials 199 and earlier 
cases in the discussion of this class of evidence. 15 American Law 
Review, 1. Although its development in the law has been marked by 
a decided tendency to envelop its meaning in such obscurity that to- 
day nearly any hearsay may be introduced under cover of the phrase 



352 COLUMBIA LAW REVIEW. 

res gesia, it is believed a consistent and convenient rule can be 
formulated by a strict adherence to the etymological and historical 
significance of the term. The reason for the admission of declarations 
as part of the res gesia is that the parts of a transaction are the best 
evidence to illustrate and characterize it, that the parts are so inter- 
woven with each other into a whole, that each gives credit to the 
other, and not, as is often erroneously said, that the surrounding cir- 
cumstances give such credit to the declarant that his statements are 
as trustworthy as the testimony of a witness under oath. Waldele v. 
N. Y. Ry. (1884) 95 N. Y. 274. Whenever therefore such declara- 
tions are not part of the transaction the reason for their admissibility 
will cease, and this should be true whether they are closely or re- 
motely connected with the transaction in point of time. State v. Mad- 
dox (1898) 92 Me. 348. The true test would not be whether the 
declarations are contemporaneous in time, as prescribed in McKelvey 
on Evidence. § 79, or so closely connected with it as to give the 
declarant no time to devise false statements for his benefit, as was 
held in Keyes v. City 0/ Cedar Falls (1899) 107 Iowa, 507, but the 
logical test would be "whether the declaration is a verbal act illus- 
trating, explaining or interpreting other parts of the transaction of 
which it is itself a part, or is merely a history or part of the history of a 
completed past affair. " Mayes v. The State (1886) 64 Miss. 329, 333. 
No arbitrary time limits can be placed upon the res gesta, Wharton's 
Criminal Evidence, § 262, but in every case, what is the completed 
transaction is a question of iact, which like many others, must be de- 
termined by the court. The authorities are in such a chaotic condition 
they cannot be said to support this or any consistent rule This conflict 
is due to confounding by the courts of declarations that are part of the 
res gesta with those that are admitted in bankruptcy, rape, and agency 
cases, and as declarations of intention and physical condition. The 
declarations allowed in cases of bankruptcy, Bateman v. Bailey 
(1794) 5 T. R. 512; rape, Rex v. Megson (1840) 9 Car. &. P. 420 
and agency, Fairlie v. Hasting (1804) 10 Ves. Jr. 123, subsequent 
to the action, deal with the substantive law of these subjects and 
properly are no part of the lav/ of evidence. Thayer's Cases on Evi- 
dence 641. Declarations of intention, frequently admitted in domicile 
cases, Matzenbaugh v. People(igo\) 194 111. 108, are allowed, in cases 
where the state of mind of the declarant is in issue, on the ground that 
they are the best and frequently the only means of ascertaining his 
state of mind. Declarations of physical condition are admitted, when 
made to a physician or, as groans, instinctively on the ground that they 
are the best evidence and the circumstances are such as to give credit 
to the declarant, Bacon v. Charlton (1851) 7 Cush. 581. These last 
two examples, however, are separate and distinct exceptions to the 
hearsay rule and have no connection with the res gesta ; a distinction 
which an examination of the leading cases will show the courts have 
often failed to recognize. 

In Ins. Co. v. Moseley (1869) 8 Wall 397, a leading American 
case, declarations of physical condition, made subsequent to an 
accident, were admitted as part of the res gesta, the accident. 
This decision was erroneously reached on the authority of Rawson 
v. Haigh (1824) 2 Bing. 99, a case of bankruptcy and three other 
cases which will be discussed more fully. The first, Rex v. Foster 



NOTES. 353 

(1834) 6 Car. & P. 325 was decided in a very short opinion 
entirely on the authority of Aveson v. Lord Kinnaird (1805) 6 
East 188, a case that had properly admitted declarations of physical 
condition and could be no authority on the res gesta rule. The 
report of the second case — Thompson et ux. v. Trevonion (1693) 
Skinner 402, in which Lord Holt allowed a statement made by the 
injured party immediately upon the injury, was too meagre for the 
principle of the decision to be deduced therefrom. It is noteworthy, 
though, that this case was decided a hundred years before there was 
any attempt to lay down a Tule for the admission of this kind of evi- 
dence. The third case — Commonwealth v McPike (i849)3Cush. 
181, reached a conclusion that would destroy any principle or rule 
and establish the "sound discretion of the presiding judge " as the 
test. Another case, — Ins. Co. v. Hillmon (189 r) 145 U. S. 285, 
often quoted, as in the principal case, as a leading authority on 
this subject, decided solely that a declaration of intention was admis- 
sible to prove mental condition. In England the leading case of 
Regina v. Bedingfield (1879) 14 Cox, C. C. 341, in refusing to admit 
declarations made by a wounded person a few seconds after the 
assault on the ground that they were narrative and not part of the 
transaction established a sound doctrine. This decision was so 
violently attacked in the press, including an article by the learned 
author of Taylor on Evidence, that it was supported extra-judicial ly 
by Chief Justice Cockburn, who had written the opinion, in a pam- 
phlet which, save for erring in giving an indirect sanction to a dis- 
tinction between the criminal and civil application of the rule (1 
Bishop's Criminal Procedure § 1080) analyzed correctly the authori- 
ties and laid down a logical and convenient working rule. The prin- 
ciples enunciated by the Chief Justice were again the subject of adverse 
criticism and this time by a no less eminent authority than the late 
Professor Thajer, 14 Am. L. R. 817, 15 Am. L. K. 1, 71. Pro- 
fessor Thayer took the illogical position of supporting the decision in 
Commonwealth v. Hackett (1861) 2 Allen 136, where declarations, 
made within a few seconds of the completion of the transaction, but 
concededly narrative, were admitted, while disagreeing with Com- 
monwealth v. McPike [supra) which admitted declarations made a few 
minutes after the transaction. He defended his position on grounds 
of expediency, holding the declarations in the first case were nearly 
enough contemporaneous to warrant their admission, while in the 
second case they were not. The practical result of this doctrine 
would be to make the trial court determine within certain time limits 
whether the declarations were sufficiently contemporaneous, which 
would resolve itself into establishing the "sound discretion of the 
presiding judge, " as the test. The case of Commonzvealth v. McPike 
was decided by such a rule, the result of which Professor Thayer ex- 
pressly disapproves. 

In the principal case the declared intention of the insured might 
be of some evidentiary value in determining whether or not he was 
dead (see Ins. Co. v. Hillmon, supra) and the admission of the letter 
might, therefore, be supported on that ground. But unless the dis- 
appearance of the insured — hardly an "act done" — can be said to be 
the res gesta, there was no definite transaction of which this letter could 
be a part, and the court erred in admitting it as such.